FEDERAL COURT OF AUSTRALIA

McNamara v Minister for Immigration & Multicultural & Indigenous Affairs [2004] FCA 1096

1.                  The application be dismissed with costs.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

REASONS FOR JUDGMENT

1                     This is an application under s 39B of the Judiciary Act 1903 in respect of the decision of the Migration Review Tribunal (‘the Tribunal’) made on 19 November 2003 refusing to grant the applicant a Partner (Temporary) (Class UK) visa.  Prescribed criteria for such a visa are set out in Pt 820 of Sch 2 to the Migration Regulations 1994, where cl 820.211 prescribes the primary criteria to be satisfied at time of application.  One such criterion in this case was that in subcl 820.211(2), which relevantly provides:

‘(2)      An applicant meets the requirements of this subclause if:

…

(d)               in the case of an applicant who is not the holder of a substantive visa –

…

(ii)               the applicant satisfies Schedule 3 criteria 3001, 3003 and 3004, unless the Minister is satisfied that there are compelling reasons for not applying those criteria.’

The ‘Schedule 3 criteria’ referred to in subpar (d)(ii) of that criterion require a visa application to be made within 28 days of an applicant becoming a person without a substantive visa.  In the present case, although the applicant’s substantive visa expired on 1 March 2000, her visa application was not lodged until 6 March 2001.  She was thus unable to satisfy the Sch 3 criteria.

2                     The applicant is a British citizen who arrived in Australia on 1 December 1999.  She held a visitor’s visa permitting her to remain in Australia for 3 months.  The applicant claimed to have separated from her husband on 1 February 2000 and to have commenced a de facto relationship with her nominator on 15 February 2000.  Her visa application (which included her four children) was lodged by her present solicitors.  They were alert to the problem posed by subcl 820.211(2) and, in their covering letter, invoked the departmental guidelines on the waiver of the Sch 3 requirements.  The first respondent’s delegate declined to waive the Sch 3 criteria, and the visa application was accordingly refused. 

3                     Without the assistance of a migration agent, the applicant applied to the Tribunal for a review of the delegate’s decision.  Under s 359A of the Migration Act 1958 (‘the Act’) the Tribunal invited the applicant to comment on her failure to satisfy the Sch 3 criteria.  She provided extensive comments.  The applicant also appeared before the Tribunal, when she and her nominator gave evidence.  The Tribunal then invited the applicant under s 359 of the Act to give additional information about the de facto relationship (which she furnished within the time requested).  Almost two months later, the applicant once more retained her present solicitors, who promptly advised the Tribunal of their retainer and soon afterwards forwarded extensive submissions on behalf of their client.  The information in those submissions was later updated once by the solicitors.

4                     The Tribunal’s statement prepared under s 430(1) of the Act comprises 10 closely typed pages divided into 51 paragraphs.  After setting out the background to the review and describing the nature of the evidence and material submitted by the applicant, the Tribunal turned its attention to the waiver provision and said:

‘24.      The term ‘compelling’ is not defined in the legislation.  According to the Macquarie Dictionary “compel” means “to force or drive, especially to a course of action”.  The Shorter oxford [sic] Dictionary also defines the word compel as ‘to bring about by force or moral necessity’.  The Tribunal has also had regard to policy guidelines in PAM3 which also refer to the Explanatory Memorandum to the Statutory Rules 1996 No. 75 that introduced this provision.’

5                     The Explanatory Statement mentioned by the Tribunal was reproduced in another case to which it referred, Boakye-Danquah v Minister for Immigration and Multicultural Affairs (2002) 116 FCR 559 at 565 ([31]).  The Explanatory Statement said:

            ‘The Schedule 3 requirements impose certain restrictions on unlawful non-citizens who apply onshore for residence on spouse grounds.  The introduction of a waiver provision recognises the hardship that can result if an unlawful non-citizen wishing to remain in Australia on spouse grounds is obliged to leave Australia and apply from overseas.  The waiver will provide greater flexibility for the Minister if and when compelling circumstances arise.

            It is expected that the waiver will be exercised only where there are reasons of a “strongly compassionate” nature such as:

-           where there are Australian-citizen children from the relationship; or

-          where the applicant and his or her nominator are already in a long-standing relationship which has been in existence for two years or longer. 

In these circumstances, waiver may be justified by the hardship which could result if the Schedule 3 criteria were not waived.’

6                     The Tribunal also set out the advice in the departmental (‘PAM 3’) guidelines, which said of the Explanatory Statement:

‘3.3.15   This does not mean that only those cases with such circumstances should benefit from the waiver; it would be an error of law to apply policy inflexibly.

3.3.16        The applicant and their nominator should be given the opportunity to present information as to why they consider there are compelling reasons to waive the Schedule 3 criteria.  Officers are, of course, required under s52 of the Act to have regard to all the information in the application.  However, it is the policy intention that an assessment of the relationship between an applicant and their nominator as genuine would not, in the absence of the factor(s) described in paragraph 3.3.14, be sufficiently compelling to justify not applying the Schedule 3 criteria.’

7                     At the time of the application neither of the specific circumstances instanced in the Explanatory Statement obtained.  The Tribunal dealt with the applicant’s waiver case as follows:

‘32.      The Tribunal has taken account of the evidence of the primary visa applicant’s relationship with her estranged husband, including that she and the children had suffered abuse from him.  The evidence includes a report from a consultant psychiatrist Dr E dated 5 March 2001 regarding the history of the primary visa applicant’s relationship with her estranged husband, the bond that had developed between her and the nominator.  The report includes the psychiatrist’s opinion that even a temporary return of the children to England would be “very destructive to their psychological and emotional development”.  The report was based on Dr E’s consultation with the primary visa applicant and the nominator on 28 February 2001.

33.       Further statements have been provided by the primary visa applicant and her family regarding the difficulties she experienced as a result of her estranged husband’s alcoholism and substance abuse problems.

34.       The representative has submitted that the primary visa applicant was unable to properly take responsibility for or enquire about her migration status during 2000 because she was struggling to recover from the abuse she had suffered over a long period.

35.       The evidence indicates that at first the nominator befriended the primary visa applicant in order to help her.  He witnessed the primary visa applicant’s husband’s behaviour towards the visa applicant and her children at his caravan park.  As time went on he became closer to the primary visa applicant and her children and when the situation with the visa applicant’s husband became intolerable he helped them leave the caravan park and arranged for them to stay at a property that he owned.  Initially the eldest child remained with his father but later left to join the primary visa applicant and the nominator.

36.       The primary visa applicant and nominator gave evidence that they commenced living together in February 2000.  They lived away from the caravan park for much of the time as the primary visa applicant’s husband threatened them and the visa applicant was afraid for herself and her children.

37.       The Tribunal has considered the circumstances of the primary visa applicant’s estrangement and separation from her husband.  The primary visa applicant has stated that she pushed the issue of her immigration status to the back of her mind during 2000 because of those circumstances.  The Tribunal finds however that she was aware of the problems surrounding her status as she indicated one of the reasons for not approaching the authorities about her ex-husband was because of her immigration status.  The Tribunal is not satisfied that the circumstances of her separation establish compelling reason at the time of application.  At that time the primary visa applicant claimed she had been in a defacto relationship with the nominator for a little over 12 months, and indicated the nominator had given her significant support during the period.

38.       The Tribunal has considered the evidence that at the time of application the primary visa applicant and her family were relying largely on the nominator for financial support, and that hardship would occur if she had to return to the United Kingdom and meet costs while a new visa application was being processed.  The Tribunal accepts that the primary visa applicant was receiving some financial support from the nominator, but is not satisfied that this constitutes compelling reasons for not applying Schedule 3 criteria. The Tribunal finds it would be reasonable to assume that any return to the United Kingdom, in order to lodge a new application, would be temporary.  The primary visa applicant is a citizen of the United Kingdom and the Tribunal is satisfied that she would have full employment rights there as well as recourse to any government assistance that was available to citizens of the country.  The evidence is that the nominator is and has been in a secure financial position.  The Tribunal is not satisfied that the evidence establishes that significant financial hardship would result if the primary visa applicant had to return temporarily to the United Kingdom.

39.       The primary visa applicant has stated that she has no ties in the United Kingdom, and had lived for many years in South Africa.  The Tribunal notes that the primary visa applicant stated in her application that she had 2 brothers residing in the United Kingdom.  The Tribunal also notes that the primary visa applicant stated in her application that she lived in the United Kingdom from May 1996 to December 1999.  While the Tribunal accepts that the primary visa application and her family had lived in South Africa for many years before that, the Tribunal finds that the primary visa applicant had resided in the United Kingdom for a reasonable period prior to arriving in Australia.  The Tribunal is satisfied that she would be in a reasonable position to establish herself in the United Kingdom for a temporary period while any new application were being processed.

40.       The primary visa applicant has referred to her anxiety at discovering that her estranged husband is in the United Kingdom.  It is not clear when he returned to the United Kingdom, although it appears he may have travelled there after being removed from Australia in early 2001.  The Tribunal is not satisfied that her estranged husband’s presence in the United Kingdom is a compelling reason for not applying Schedule 3 criteria.  The Tribunal is satisfied that the primary visa applicant would have recourse to assistance from the authorities if she considered he were a threat in the United Kingdom.

41.       There is no evidence that at the time of the application the nominator was physically or mentally dependent on the primary visa applicant.  The Tribunal has taken account of the nominator’s evidence that he would find it difficult if he had to be separated from the primary visa applicant and her family.  The Tribunal accepts that a temporary separation can be stressful to all parties.  But the Tribunal is not satisfied that in these circumstances the separation involved in the primary visa applicant and family lodging applications in the United Kingdom constitute compelling reasons.

42.       The Tribunal has considered the evidence claiming there would be disruption to the primary visa applicant’s children’s education, as well as their stable lives, if they had to return to the United Kingdom for the processing of new visa applications.  The Tribunal notes the evidence that the children undertook formal schooling in Australia in 2001.  It appears that the 3 youngest children who were in Australia throughout 2000 did not formally attend school during that year.  At the time of application the eldest son had completed his secondary education in the United Kingdom.  At the time of application the 3 youngest children had only just started schooling in Australia after a period during which they had not been at school.  They had previously been in schools in the United Kingdom.  The Tribunal is not satisfied on balance that the circumstances of the children’s education at the time of application constitute compelling reasons not to apply schedule 3 criteria.

43.       The Tribunal accepts the evidence that the children grew to have a relationship of trust with the nominator.  The Tribunal finds that there is no evidence that at the time of application the children were dependent on the nominator in terms of his role in relation to them.

44.       The Tribunal has considered the psychiatrist’s opinion that a temporary return of the children to the United Kingdom would be destructive to their psychological and emotional development.  The psychiatrist’s report indicates that he did not speak directly to the children.  He has not indicated how he reaches his conclusion in the context that the children were living in the United Kingdom before travelling to Australia.  The Tribunal therefore does not give overriding weight to the psychiatrist’s opinion.

45.       The Tribunal has considered the evidence that the primary visa applicant’s father relies on her for support because of his illness.  At the time of application the primary visa applicant’s father was not residing in Australia.  The Tribunal finds that his circumstances at the time of application do not establish compelling reasons for not applying in Schedule 3 criteria.

46.       The Tribunal has considered the evidence regarding all the circumstances of the case, and has taken account of the numerous letters of support for the primary visa applicant.  The Tribunal finds that the circumstances of the case at the time of application do not constitute compelling reasons for not applying the Schedule 3 criteria.’

8                     Counsel for the applicant relied on four alleged jurisdictional errors.  First, he submitted that the applicant was denied procedural fairness because she had a legitimate expectation that the Tribunal would act in conformity with the United Nations Convention on the Rights of the Child and treat the interests of her children as ‘a primary consideration’.  This ground rested on the three propositions for which the judgments in Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 are authority and which were identified in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1 by McHugh and Gummow JJ at 28-30 ([87]-[89]).  In order to avoid the fate of the applicant in Lam and to demonstrate practical injustice, counsel for the applicant tendered the transcript of the Tribunal hearing and read a short affidavit by his client.  Counsel for the respondent formally submitted that Teoh was wrongly decided, but he also contended that the scheme of the Act precluded the Tribunal taking the identified expectation into account in reaching its decision.   I accept that last contention.

9                     It is axiomatic that s 65 of the Act requires the decision-maker to be ‘satisfied’ of various matters.  Section 65 does not confer a power to be exercised as a discretion.  In the present case it was the ‘Schedule 3 criteria’ that required attention.  The application of those criteria would result in the applicant being obliged to leave Australia and to apply from overseas for residence on spouse grounds.  The consequences for her children were at the forefront of the reasons advanced by the applicant for not applying the Sch 3 criteria.  The applicant was not denied the opportunity to present any material or argument on this topic.  Neither the transcript of the Tribunal hearing nor the applicant’s affidavit show any procedural unfairness.  Before the Tribunal decided whether to waive the Sch 3 criteria, it was not obliged to give any notice to the applicant by virtue of the ratification of the United Nations Convention.  This alleged error is not made out.

10                  Secondly, counsel for the applicant submitted that the Tribunal misconstrued the term ‘compelling reasons’ in the waiver provision of the criterion.  The dictionary definitions, to which the Tribunal referred and which are reproduced in [4] above, are said to involve an impermissibly high standard.  This is a silly point.  There is no true construction of the expression in question.  Reasons for not applying the Sch 3 criteria may appear compelling to one person and not to another.  The adjective ‘compelling’ does not introduce an objective standard.  The waiver decision will always involve a subjective judgment.  In the present case the Tribunal considered whether the reasons advanced by the applicant justified not applying the criteria.  That approach reveals no error.

11                  The third ground of alleged jurisdictional error is that the Tribunal failed to take into account a relevant consideration, namely, the need of the applicant and her children for stability in their lives.  The short answer to this ground is that the Sch 3 criteria nowhere mention such a factor as a matter that the Tribunal is bound to consider.  In any event, a fair reading of the Tribunal’s reasons shows that it was conscious of the consequences of the application of those criteria and of the effect of their application on the lives of the applicant and her children.  This last observation disposes of the applicant’s fourth ground, which was that the Tribunal failed to consider the cumulative effect of the circumstances it found to exist.  Moreover, that is what the Tribunal expressly said it did in the last paragraph of its reasons reproduced at [7] above.

12                  The application will be dismissed with costs.

Associate:

Dated:              25 August 2004